United States v. Velarde-Pelayo

United States District Court, D. Utah, Central Division

February 15, 2018

UNITED STATES OF AMERICA, Plaintiff,v.Jose Velarde-Pelayo, Defendant.

MEMORANDUM DECISION AND ORDER

DAVID
SAM SENIOR JUDGE

Before
the court is Defendant, Jose Velarde-Pelayo's Motion to
Dismiss Indictment pursuant to Fed.R.Crim.P. 12(b)(3)(B)(v).
After reviewing the parties' briefing, the court has
determined that oral argument would not materially assist in
the determination of the motion, so the court hereby denies
Defendant's request for oral argument and will decide the
Motion to Dismiss based on the written memoranda now before
the court.

The
indictment against Jose Velarde-Pelayo (Defendant) arises
from an investigation initiated by Homeland Security
Investigations (HIS) and the Bureau of Alcohol, Tobacco, and
Firearms (ATF) special agents regarding the sale of suspected
restricted firearms. On August 29, 2016, a person cooperating
with law enforcement arranged to purchase a Romanian-made
AK-47 type rifle from Defendant. On October 18, 2016, the
individual purchased a Ruger model 10/22, .22 caliber rifle
from Defendant. Based on record checks, HSI agents determined
that Defendant was not a citizen of the United States, and
did not have lawful immigration status to be in the United
States. Defendant had submitted an approved application, form
I-821D, for Consideration of Deferred Action for Childhood
Arrivals (DACA), on which he listed his place of birth as
Puerto Vallarta, Mexico, and his citizenship/nationality as
Mexico. ECF No. 21-2. Additionally, Defendant provided
information regarding his entry into the United States and
stated his initial entry as 10/8/2000, at Nogales, Arizona,
and listed his status at entry as “EWI-Entry without
Inspection. Id.

On June
28, 2017, a grand jury returned a multiple count indictment
alleging multiple violations of Title 18 U.S.C. §
922(g)(5), Unlawful Alien in Possession of a Firearm.

Defendant
does not dispute any of the facts alleged by the Government,
other than that he was illegally or unlawfully in the United
States at the time he possessed the gun. He believes that
because he was an authorized recipient of temporary status
under the federal government's DACA program when he
allegedly possessed the gun, he was not illegally or
unlawfully in the United States as articulated in the
Indictment and thus, was not a restricted person with respect
to firearm possession.

Defendant
had applied for and received deferred action under the DACA
program, valid until September 15, 2017. DACA is described by
the Department of Homeland Security (DHS) as “a form of
prosecutorial discretion by which the Secretary deprioritizes
an individual's case for humanitarian reasons,
administrative convenience, or in the interest of the
Department's overall enforcement mission, ” and
“it may be terminated at any time at the agency's
discretion.” See, United States v. Arrieta,862 F.3d 512, 513 (5th Cir. 2017). In addition,
DHS policy memorandum announcing DACA expressly states that
the program “confers no substantive right, immigration
status or pathway to citizenship, as only Congress, acting
through its legislative authority, can confer these
rights.” Id.

Form
I-797, Notice of Action, dated October 25, 2013, by which
Defendant received approval notice of his 821D DACA
application, expressly states that “[d]eferred action
is an exercise of prosecutorial discretion by USCIS not to
pursue removal of an individual from the United States for a
specific period. Deferred action does not confer or alter any
immigration status.” ECF No. 21-2.

Pursuant
to Title 18 U.S.C. § 922(g)(5), it is unlawful for an
alien who is “illegally or unlawfully in the United
States to possess in or affecting commerce, any firearm or
ammunition.” While “illegally or unlawfully in
the United States” has not been defined by statute,
several courts have concluded that immigration status is the
key factor in determining the applicability of Section
922(g)(5). These courts distinguish between authorization to
be in the United States for a temporary or limited purpose
and lawful immigration status for purposes of Section
922(g)(5).

The
Tenth Circuit addressed this issue in United States v.
Ochoa-Colchado, in which it held that an alien granted
temporary reprieve from removal proceedings and work
authorization pending the adjudication of an application for
relief from removal is still illegally and unlawfully present
for purposes of Section 922(g)(5). United States v.
Ochoa-Colchado,521 F.3d 1292, 1298 (10th
Cir. 2008). The Tenth circuit also held that an approved
I-130 petition for Alien Relative does not authorize an alien
to stay in the United States, and thus does not lift section
922(g)(5)'s firearm restriction for aliens illegally or
unlawfully present in this country. U.S. v. Atandi,376 F.3d 1186, 1191 (10th Cir. 2004).

The
Fifth Circuit addressed the issue of whether an alien who has
received deferred action under DACA is illegally or
unlawfully in the United States for purposes of Section
922(g)(5). See, USA v. Arrieta,862 F.3d 512, 513
(5th Cir. 2017). The court held that the absence
of lawful immigration status is controlling, and because DACA
does not confer or alter immigration status, Section
922(g)(5) is applicable in the case of an alien previously
granted deferred action under DACA. Id. at 512.

Defendant
entered the United States unlawfully without inspection, and
had no immigration status when he filed for deferred action
under DACA. ECF. No. 21-1. While the receipt of deferred
action under DACA authorized Defendant to be in the United
States for a temporary period and allowed him to receive some
additional benefits, it neither altered nor conferred
immigration status, and thus he remained illegally and
unlawfully present for purposes of Section 922(g)(5).

Defendant
argues that DACA recipients must meet multiple stringent
criteria to establish eligibility for the program's
benefits, and that the program confers valuable rights upon
the recipients. Because of this, he asserts that arbitrary
termination of these valuable rights by the Department of
Homeland Security without any due process procedures violates
the Administrative Procedure Act and the due process clause
of the Fifth Amendment to the Constitution. He claims that
because his status had not been removed, nor had he been
afforded due process procedures to terminate his rights and
protections under DACA, he could not be considered to be
“illegally or unlawfully in the United States, ”
as required to be considered a restricted person under 18
U.S.C. 922(g)(5).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;This is
unpersuasive. DHS policy memorandum expressly states that
deferred action under DACA, &ldquo;may be terminated at any
time at the agency&#39;s discretion.&rdquo; See, U.S. v.
Arrieta at 513. The United States Citizenship and
Immigration Services website for ...

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